89 Ill. 314 | Ill. | 1878
delivered the opinion of the Court:
The first point made by counsel for appellant is, that “the policy sued on was void by reason of the false warranty as to other insurance in the application.” This position is well taken, unless the insurance company be estopped from making this defense. In the case of the Rockford Insurance Co. v. Nelson, 75 Ill. 415, it is said by this court, “If the agent of appellant [insurance company] made out the application for the insurance with a knowledge of the facts, and there was no collusion in so doing between the agent and appellee, then appellant is bound by its statements as to * * * the situation of the property,” and it is added, such has been the uniform ruling of this court for many years. It is perhaps unnecessary that in this case we should enter into an elaborate discussion of the cases cited pro and con upon this question. It is sufficient to say that we are of opinion that in this case appellant is estopped from setting up as a defense, or alleging, that there was additional insurance not mentioned in the application. Appellee fully disclosed to the agent of appellant, at the time of making the application, that he held this insurance policy in the Phoenix company. He concealed nothing from the appellant or his agent. Appellant, with full knowledge of these facts, accepted the application in the condition in which it was, and issued the policy upon it and accepted the premium which was paid upon it. To hold this policy void under such circumstances would be simply allowing the insurance company to practice an unblushing fraud upon the insured. It was as well known to the insurance company, when they accepted the premium upon this policy and issued it as á valid policy to appellee, that there was additional insurance upon the property, as it is now. Having thus declared it valid to the appellee, the appellee having paid his premium upon the faith of that declaration by the company, the company can not now be permitted to say that it is invalid upon that ground.
It is also claimed by appellant that this policy was rendered void by a subsequent insurance in the Phoenix company.
This allegation is not sufficiently sustained by proof to warrant us in disturbing the verdict upon that ground. It seems more probable that a mistake was made in the date of the policy in the affidavit of Luttrell, wherein this policy is described. It must be remembered that at that time the policy in the Phoenix company was destroyed by fire,—that Luttrell had no copy of it before him. He may have been mistaken in his recollection of its date, or it may have been a slip of the pen in writing the date in the affidavit. Ho attempt was made to prove affirmatively that there were two policies, and the whole tenor of the testimony shows that there was but one, and that one was in existence at the time of this insurance, and as above stated was well known to the insurance company.
Exception is also taken to some of the instructions given the jury in this case in behalf of the plaintiff, by the court below, but what we have already said in relation to the first point made by appellant’s counsel is sufficient answer to the objections presented in the instructions.
Judgment in this case must be affirmed.
Judgment affirmed.
